95-030

Petitioner appeals from the decision of an impartial hearing officer which denied petitioner's request for an order requiring respondent to reimburse him for the cost of his son's tuition at the private school in which petitioner placed him for the 1993-94 school year. The hearing officer denied petitioner's request for reimbursement, solely on the basis of petitioner's failure to request reimbursement in a timely manner. The appeal must be sustained in part.

On March 30, 1995, an impartial hearing was held at petitioner's request for the purpose of securing reimbursement for tuition costs resulting from his unilateral placement of the child at the Steven Gaynor School for the 1993-94 and 1994-95 school years. Petitioner was represented at the hearing by his attorney. However, neither he nor his child was present. Respondent was represented at the hearing by the assistant chairperson of the committee on special education (CSE) of Community School District 3. The only witness testimony at the hearing was provided by the child's teacher, Laura Kennedy, who testified by telephone. Additionally, petitioner offered into evidence three written documents. The first document, a joint exhibit, was an individualized education program (IEP) report dated January 2, 1992. Petitioner's second exhibit was a document which surveyed the general developmental and social skills of the child and his classmates in his 1994-95 placement. Petitioner's final exhibit was a progress report, prepared by the child's teacher, outlining his progress during the 1994-95 school year.

The assistant chairperson of the CSE testified at the hearing that on January 12, 1992 the child had been classified as learning disabled. The child's classification is not disputed in this proceeding. At that time, the child was reportedly enrolled in a private kindergarten. The CSE assistant chairperson further testified that the CSE had recommended that the child be placed in a modified instructional services - I (MIS-I) class with a student/teacher ratio of 15:1. However, respondent concedes in its answer that it did not offer a placement for the child for the remainder of the 1991-92 school year. The record does not disclose where the child attended school for the 1992-93 school year. Respondent further concedes that it did not offer the child a placement for the 1993-94 or the 1994-95 school years.

During the 1993-94 school year, when he was in the first grade, the child attended the Steven Gaynor School, at petitioner's expense. He remained in the Steven Gaynor School for the 1994-95 school year, also at petitioner's expense. The Steven Gaynor School is a private school for children with disabilities located in New York City. The Steven Gaynor School has not been approved by the New York State Education Department as a school for educating children with disabilities, for purposes of State reimbursement of school districts for placement costs. However, it is conceded that tuition costs at the Steven Gaynor School are within the range of costs charged by private schools which have been approved for that purpose.

In a decision dated April 12, 1995, the impartial hearing officer ordered respondent to reimburse petitioner for tuition costs for the 1994-95 school year. However, the impartial hearing officer denied petitioner's request for reimbursement of tuition costs for the 1993-94 school year, on the ground that petitioner had not made a timely request for tuition reimbursement. The hearing officer found that the petitioner had waited until February, 1995 to assert his claim for tuition reimbursement. Petitioner thereafter commenced this appeal seeking a reversal of that portion of the impartial hearing officer's decision which denied petitioner reimbursement of tuition costs for the 1993-94 school year.

A board of education may be required to reimburse a parent for the cost of a child's educational services obtained by the parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim for reimbursement (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Hillerv. Brunswick CSD, 674 F. Supp. 73 [N.D.N.Y., 1987]; Application of the Board of Education of the City School District of the City of New York, Appeal 95-26). Prior to November 9, 1993, petitioner was precluded from seeking reimbursement because the private school selected by the parent had not been approved by the State Education Department as a school for children with disabilities (Tucker v. Bay Shore UFSD, 873 F. 2d 563 [2nd Cir. 1989]; Lombardi v. Nyquist, 6380 2d 1058 [3rd Dept. 1978]). On November 9, 1993, the United States Supreme Court held that a parent could obtain reimbursement for tuition at an unapproved private school, if the private school provided the child with an appropriate education (Florence County School District Four et al. v. Carter by Carter, U.S. 114 S. Ct. 361).

The impartial hearing officer found that respondent did not meet its burden of demonstrating that it had offered the child an appropriate program or placement for the 1993-94 school year. As a result, petitioner prevailed with respect to the first Burlington criterion, i.e., whether the services offered by the board of education were appropriate for the child. The impartial hearing officer also found that the petitioner had prevailed with respect to the second Burlington criterion, i.e., whether the services received by the child at the private school were proper under the Individuals with Disabilities Education Act (20 USC 1400 et seq).

I must note that respondent has attempted to challenge the impartial hearing officer's determination with respect to the appropriateness of the child's placement during the 1993-94 school year in its answer to the petition. Specifically, respondent points to testimony of the child's teacher which strongly suggested that the child was inappropriately placed with children of differing social skills in the Steven Gaynor School during the 1993-94 school year, and as a result, did not receive appropriate educational services. However, as respondent has neither appealed nor cross-appealed from the impartial hearing officer's decision with respect to the appropriateness of the child's education during the 1993-94 school year, I do not reach that issue. Federal and State statutes provide that a hearing officer's decision is final and binding upon both parties, and must be appealed to the State Review Officer (20 USC 1415 [c]; Section 4404 [1] of the Education Law). While I do not necessarily agree with the hearing officer's findings with respect to the adequacy of the educational services provided to the child during the 1993-94 school year, I am precluded from reaching that issue by respondent's failure to appeal or cross-appeal from the hearing officer's decision (Hiller v. Brunswick CSD, supra; Application of a Child with Disability, Appeal No. 95-8). Accordingly, this appeal must be limited solely to the hearing officer's decision concerning the third criterion under the Burlington decision, i.e., whether equitable considerations supported petitioner's claim for tuition reimbursement for the 1993-94 school year.

The impartial hearing officer found that the child was placed at the Steven Gaynor School prior to September, 1993, and speculated that: "it is most likely that (petitioner was) required to sign a contract for the entire 1993-94 school year and to remit at least partial payment as deposit." Noting that the Carterdecision had been rendered in November, 1993, the hearing officer found that the petitioner did not seek tuition reimbursement at any time during the 1993-94 school year, nor did he seek tuition reimbursement immediately following the school year. Instead, the petitioner waited until February 19, 1995, to request an impartial hearing to seek reimbursement for both the 1993-94 and 1994-95 school years. The hearing officer found that petitioner's delay of approximately eight months beyond the end of the school year was untimely, and constituted grounds for denial of the request for reimbursement.

While acknowledging that there was no explicit statute of limitations with regard to petitioner's claim, the hearing officer found that Section 3813 of the Education Law offered some guidance. However, I find that the hearing officer's reliance upon Section 3813 of the Education Law is misplaced. That section, which imposes a one-year statute of limitations, is specifically directed toward actions or special proceedings, i.e., litigation in a court of law. The instant proceeding is neither an action, nor a special proceeding, as those terms are used in the statute. As such, I decline to borrow the one-year statute of limitations imposed by Section 3813 of the Education Law.

The impartial hearing officer also relied upon the decision in Matter of L. v. NYS Dept. of Ed., 39 NY 2d 434 (1976), which held that parents were required to assert tuition claims under the former Section 232 of the Family Court Act within the school year for which reimbursement was sought. However, it has been previously held that the decision in Matter of L. was inapposite because it was premised, in part, upon a regulation which did not apply to a board of education (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-25).

The hearing officer also relied upon the decisions of the Commissioner of Education in Matter of a Handicapped Child, 24 Ed. Dept. Rep. 454, and Application of a Child with A Handicapping Condition, 28 Ed. Dept. Rep. 211. In the first decision, the Commissioner held that a parent's claim for tuition reimbursement which was made approximately three months after the end of the school year was barred by the equitable doctrine of laches. However, the decision does not indicate the factors which were considered by the Commissioner in reaching his conclusion. I must also note that, unlike the present appeal, the law did not change during the school year, with regard to eligibility for tuition reimbursement (the Carter decision). The second Commissioner's decision was premised upon the decision in Adler by Adler v. Education Department of New York, 760 F 2d 454 (2d Cir., 1985) which involved whether the four-month statute of limitations to challenge a state level review decision in State court applied a similar challenge in Federal court. That issue is not dispositive of the question presented in this appeal, and I find the Commissioner's decision and the Adler decision to be inapposite. Additionally, I must note that one court has held that New York's three-year statute of limitations for civil rights actions was applicable to a parent's claim for procedural violations of the Federal Individuals with Disabilities Education Act (Mason v. Schenectady City School District, 879 F. Supp. 215 [N.D.N.Y. 1993]). Nonetheless, it has been previously held that it is not necessary to ascertain what is the most analogous cause of action for the purposes of borrowing an appropriate statute of limitations in cases of this nature (Application of the Board of Education of the City School District of the City of New York, Appeal No. 95-26; Application of a Child with a Disability, Appeal No. 95-31), and I decline to do so in this appeal.

The issue of the timeliness of a parental request for tuition reimbursement must be considered as part of the third Burlington criterion, i.e., whether equitable considerations support the parent's claim for reimbursement (Application of the Board of Education of the City School District of the City of New York, supra; Application of a Child with a Disability, supra). In those appeals, it was found that the hearing record was inadequate to determine if equitable factors supported the parental claim for tuition reimbursement. I am compelled by the paucity of the record in this appeal to make similar finding, and remand the matter for a hearing. As outlined in Application of a Child with a Disability, supra, a number of questions must be addressed at an impartial hearing in consideration of the third Burlington criterion. First, it must be determined whether the CSE provided any notice to petitioner about his due process rights, and the nature of that notice. Secondly, when did petitioner become aware, or when should petitioner have become aware, of his right to obtain reimbursement for the placement of the child in an unapproved private school. Thirdly, when did the CSE become, or should have been aware, of petitioner's dissatisfaction with the CSE's inaction with respect to preparing an IEP and offering appropriate placement for the 1993-94 school year. Fourthly, has the petitioner cooperated with the CSE during the time in question. A determination about the equitable considerations in this matter requires an analysis of the facts. I believe that both parties should have an opportunity to establish a basis in the record for their respective positions concerning the equities of awarding tuition reimbursement to petitioner for the 1993-94 school year.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED;

IT IS ORDERED that the portion of the hearing officer's decision which denied petitioner's request for tuition reimbursement for the 1993-94 school year is annulled; and

IT IS FURTHER ORDERED that within ten days after the date of this decision respondent shall schedule a hearing to resolve the issue of whether equitable considerations support petitioner's claim for tuition reimbursement for the 1993-94 school year.